MR T DAWSON v BURLINGTON DANES SCHOOL [1999] UKEAT 468_99_2506

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 468_99_2506

Case No Appeal No. EAT/468/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR T DAWSONAPPELLANT

BURLINGTON DANES SCHOOLRESPONDENT

Before

His Honour Judge John Altman Mrs T A Marsland Mr T C Thomas

Date 25 June 1999

[1]APPEARANCES For the Appellant IN PERSON JUDGE JOHN ALTMAN: This is an appeal from an award of costs following a hearing before the Employment Tribunal at London North on 8 February 1999. The Appellant applied on the ground that he had been unlawfully discriminated against on the ground of race, his application was dismissed and he was ordered to pay £500 towards the costs of the Respondents. The matter comes before us by way of preliminary hearing to determine if there is a point of law which would merit this matter being considered in full by the Employment Appeal Tribunal. I quote in full the decision on costs:

"The Employment Tribunal adverted to the application for costs on the grounds that the claim was frivolous and vexatious and the Respondents had referred to that in their Originating Application so that the Appellant was on notice."

They said this:

"At the hearing on 27 October it was clear that the Applicant had not pleaded his case and was reluctant to do so on the grounds that he did not wish to give the Respondents an unfair advantage. The Respondents solicitor wrote to the Applicant warning him that they considered his case to be without merit and he was acting unreasonably and vexatiously. The Applicant appears not to have taken the advice of the Tribunal at the earlier hearing to seek professional advice from the CAB or solicitor on the merits of his case and how it should be pleaded. The Respondents have had to attend on two occasions with their witnesses to answer a case, which was without and on which there was no evidence to justify the Applicant's claim. The Applicant in reply to the application for costs stated that he had had help from his union but he thought he had a right to "test the water"

. Accordingly, we find that in our opinion, and unusually in a race discrimination cases, that the Applicant acted frivolously and vexatiously and unreasonably in pursing his claim which was without merit and therefore we order under Rule 12 of the Industrial Tribunal Constitution and Rules of Procedure Regulations 1993 the costs against the Applicant in the sum of £500.00." In his Notice of Appeal the Appellant complains that the Tribunal did not set out the reasons for making their finding or the grounds on which they were awarded and he asserted that he had not acted frivolously, vexatiously or unreasonably.

[2]We have looked at the decision of the Tribunal. It is clear in the section to which I have quoted that the Tribunal set out the grounds very clearly on which they were making their award; a reluctance to tell the other side what his case was about, which is an impossible situation to place another party in, that unnecessary attendance and a case which was without merit and pursuing a claim without taking advantage of that advice which would have led him to act more circumspectly.

[3]It is clear that the Tribunal at the earlier hearing doubted the merits of the Applicant's case and considered that professional advice, which would not necessarily have had to be paid for if it was at the CAB, would have assisted. Those are reasons, it seems to us, which a Tribunal is entitled to rely on. Whether we would have made an order in those circumstances is irrelevant. It is clear to us that the Tribunal directed itself appropriately as to the provisions of law and applied the facts so far as they saw them to their decision and came to a decision which a Tribunal was entitled to come to. No point of law rises on the point of principle contained in the appeal.

[4]The Appellant has sought to argue that by the way the Tribunal conducted the hearing by not considering fully witness statements put in, not permitting witnesses to be called whom the Applicant wished, they had so distorted the hearing as to give a false impression that the Appellant's claim had no merit, and therefore came to the wrong conclusion as to costs. The conduct of the hearing is a matter within the broad discretion of the Tribunal and we can find not point of law in which they erred in that respect.

[5]The Appellant then goes on to point out that although there had been two hearings, the first one was aborted, simply because no documentation had been received by the Appellant from the Respondents and the aborted nature of the hearing he says was no fault of his. In their decision, it appears on the face of the reasons of the Tribunal, that it may be arguable that the Tribunal appears to have attributed that hearing to the fault of the Appellant. It is not altogether clear and in any event, if the first hearing had been a reasonable hearing and the failure to provide documents by the Respondents had been reasonable, then the costs lost were lost because of the bringing of the case without merit and no distinction falls to be drawn between the two. But because of the uncertainty about whether the Tribunal was attributing some of the costs of the first hearing incorrectly to the Applicant, it seems to us that there is an arguable point as to the amount of the costs on the basis that the Tribunal wrongly may have taken into account the earlier hearing in assessing the amount of costs to order. Therefore on that narrow ground we are content for this appeal to go forward on the question of amount only.

[6]At the conclusion of this appeal we canvassed with the Appellant his willingness to seek to come to some sort of accommodation as to the amount of costs with the Respondent. He declined to do so saying he would have to cross that bridge when he reached it, but disclosed to us a matter to which we had not been privy earlier. At the hearing, the Tribunal was told that the costs of the Respondent were assessed by them at £7,000. It is clear to us therefore that the award of £500 cannot as we earlier thought have been attributed in the way we said between the two hearings where the Tribunal had been presented with a figure of £7,000.

[7]Furthermore, we have had in the meantime, an opportunity of re-reading the decision of the Employment Tribunal. The Appellant had told us that the first hearing was adjourned through no fault of his own and that it was the failure of the Respondents to produce documents which led to its being aborted. We acted in what we said a few moments ago upon that basis. Having revisited the extended reasons contained in paragraph 11 of the Tribunal decision we find that that was erroneous. At that first hearing, the Appellant was asked to give details of the discrimination so the issue could be identified. The Tribunal went on:

"The Applicant admitted that he was white and was British but would not orally give details of the discrimination of which he alleged. Accordingly the case had to be adjourned and he was ordered to give further and better particulars of his claim by the 11 November 1998. He was also warned that if he did not comply with the order his claim would be struck out."

[8]Application for costs was made at that hearing which was postponed until the full merits hearing. We apologise that this was not incorporated in our earlier decision and that as a result we have decided to amend our earlier decision. It is clear to us that no point of law does arise on the assessment of costs bearing in mind both the amount and the basis upon which the earlier hearing was adjourned. Accordingly we propose to amend our earlier decision. We are satisfied that no point of law at all arises on this appeal and it will be dismissed at this stage.